NDOU J: The applicant approached this court
under a certificate of urgency seeking a provisional order in the following
terms:
“Terms of the Final Order sought
It is ordered that:
That
(sic) you show cause to this
honourable court why a final order should not be made in the following terms:
(a)
That the third
respondent be interdicted from dealing with the estate of the late Fani Dube registered
under DRB 1786/2000 pending the finalization of the application for rescission
of judgment under High Court case number HC858/2009.
(b)
That the costs of
this application be in the main cause.
Terms
of the interim relief granted
It
is ordered that pending finalization of this application the third respondent
be and is hereby interdicted from dealing with the estate of the late Fani Dube
registered under DRB 1786/2000.”
The salient facts of this matter are
the following. The late Fani Dube was
married to the 1st respondent at time of his death. He left behind two minor children, namely,
Lewis Dube and Nonceba Dube, mothered by Rosemary Chiganze and Patience Maphosa
(1st respondent) respectively.
Thereafter, the administration of
the estate of Fani Dube was melodramatic as evinced by the abovementioned
cross-referenced applications filed in this court. The “will” was challenged. The administration by the initial executor was challenged. In this legal melee, the applicant at some
stage, ran out of funds, resulting in a default judgment on account of
non-action by her legal practitioners.
This court granted a default judgment at the behest of the 1st
respondent on 12 February 2009. Pursuant
to the provisions of this court order, the 1st respondent advertised
in the Chronicle newspaper that the account of the estate of the late Fani Dube
was lying for inspection (for twenty-one days) at the Master's office (3rd
respondent). When the applicant saw the
advertisement she sprang into action and filed a combined application for
condonation and rescission under HC 858/09 simultenously with this
application. These two applications were
filed on the same day i.e. 10 June 2009.
This application was filed some seven days before the expiry of the
above-mentioned statutory twenty-one day period – see section 59(6) of the
Administration of Estates Act [Chapter 6:01].
The applicant still had seven days to lodge objections with the 3rd
respondent in terms of section 59(8).
Instead of doing so, the applicant filed this application under a
certificate of urgency without explaining why the domestic route provided for
in section 59(8) and (9) cannot remedy the issue she is complaining about. She has not approached the 3rd
respondent to postpone or stay the period.
The applicant has not exhausted domestic remedies provided for in the
Act before coming to this court. On this
point alone the application must fail – Rubber
Bullets FC v Motmate Champion FC
& Ors HB-3-03.
Further and in the alternative,
there is nothing interim about the provisional order sought. If granted, in terms of the above-mentioned
terms, the applicant obtains final relief without proving her case. This is so because the interim relief sought
is identical to the main relief and has the same substantive effect – Kuvarega v Registrar –General & Anor
1998 (1) ZLR 188 (H) at 192F-193D; Rowland
Electro Engineering (Pvt) Ltd v Zimbabwe
Banking Corporation HH-36-03 and Merspin
Ltd v Burukai & Ors HB-37-05. On this latter point, the application must fail,
as well.
Accordingly, the application is
dismissed with costs.
Wilmot & Bennett c/o R
Ndlovu & Partners, applicant's legal practitioners
Cheda
& Partners, 1st respondent's legal practitioners
